NSA Spying: What Counts As Unreasonable Search And Seizure?

Daniel Ellsberg, the former military analyst, says the NSA leak by Edward Snowden is the most important in American history. That’s saying something given Ellsberg himself released the “Pentagon Papers” over 40 years ago, making him arguably the most famous whistle-blower to date.

The Guardian — In my estimation, there has not been in American history a more important leak than Edward Snowden’s release of NSA material – and that definitely includes the Pentagon Papers 40 years ago. – Daniel Ellsberg

Ellsberg doesn’t hold back in his condemnation for executive overreach, saying Snowden has exposed the power the intelligence community has over ordinary citizens, calling them “the United Stasi of America,” in reference to the secret police in the former East Germany. Ellsberg says this overreach is an “executive coup” against the United States constitution.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

That is the Fourth Amendment to the United States Constitution. The question you have to ask yourself is: Do you care about upholding the Fourth Amendment? Do you care about upholding the entire Bill of Rights? Do you care about upholding the entire U.S. constitution? Yes, the constitution is intentionally vague in many areas, but the Fourth Amendment, while non-specific, seems pretty straight forward. There is no right to privacy, as such, but the Fourth Amendment says government cannot search or seize your property without probable cause. And any reasonable definition of “probable cause” cannot include collecting phone records and internet data from every single American citizen to thwart serious (but rare) terrorist events.

Terrorism is very low on the list of risks each of us face each day, but because this country is still recovering from the shock of 9/11, almost 12 years ago, we elevate terrorism to an unwarranted level. Is terrorism likely to happen? I guess it depends on how you look at it. Is it likely that another terrorism attack will happen? Yes. — Is it likely that you or I will be the victims of a terrorist attack? Not so much. — I do believe the executive overreach we are witnessing is done to protect all citizens in the name of national security, but that doesn’t make it right, and it also doesn’t make it constitutional. A free state is not without its risks. When people say, “freedom isn’t free,” they invariably are talking about the sacrifices of many brave men and women in our armed forces, but that phrase also applies to all citizens. If we want to live in a free country, we must accept there are risks. Freedom does not come with 100% security, and security does not come with 100% freedom.

On HBO’s Real Time this past Friday, Bill Maher suggested since we are disregarding the Fourth Amendment, why stop there? Why not the Second Amendment? There are people in this country who display religious zeal, an unhealthy lust, when it comes to the Second Amendment. There is no such constituency protecting the Fourth Amendment. But if we are tearing down one amendment, why not tear them all down?

We must remember that there is a balance between freedom and security, and when you see America’s military and intelligence community response to the 9/11 attacks, it seems we have tipped the balance toward security and away from freedom. “I don’t want to live in a society that does these sort of things,” said Snowden. While most won’t say it, I’ll gladly say people like Edward Snowden, Daniel Ellsberg, and even Bradley Manning have made the sacrifices necessary to make the phrase “freedom isn’t free” ring true.